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[U] Commonwealth v. Torres

Superior Court of Pennsylvania

February 28, 2014



Appeal from the Judgment of Sentence June 12, 2013 in the Court of Common Pleas of Delaware County Criminal Division at No.: CP-23-CR-0003479-2010




Appellant, George Anthony Torres, III, appeals from the judgment of sentence entered following the revocation of his probation. Specifically, he challenges the discretionary aspects of his sentence. We affirm.

On August 30, 2010, Appellant entered into a negotiated guilty plea to selling a firearm to an ineligible transferee, 18 Pa.C.S.A. § 6111(g)(2). The court sentenced Appellant to a term of probation of thirty-six months. On October 4, 2012, Appellant pleaded guilty to attempted possession of fentanyl in the United States District Court for the Eastern District of Pennsylvania and served a sentence of five months' incarceration.

On June 12, 2013, the trial court conducted a Gagnon II[1] hearing and found Appellant in violation of the condition of his probation that he comply with municipal, county, state, and federal laws, because of his federal conviction. The court revoked Appellant's probation and sentenced him to not less than twenty-four nor more than forty-eight months' incarceration.

Appellant filed a motion to modify and reduce sentence, which the trial court denied on June 27, 2013. Appellant timely appealed on July 11, 2013. See Pa.R.Crim.P. 708(E).[2]

Appellant raises two questions for our review:
[I.] Whether the [trial c]ourt erred and violated [Appellant's] rights when it failed to place adequate and proper reasons for the sentence on the record at the time of sentencing as required?
[II.] Whether the judgment of sentence imposed herein should be vacated since it was unduly harsh and excessive under the circumstances of this case?

(Appellant's Brief, at 5).

Our review is guided by the following principles:
The imposition of sentence following the revocation of probation is vested within the sound discretion of the trial court, which, absent an abuse of that discretion, will not be disturbed on appeal. An abuse of discretion is more than an error in judgment-a sentencing court has not abused its discretion unless the record discloses that the judgment exercised was manifestly unreasonable, or the result of partiality, prejudice, bias or ill-will.
When assessing whether to revoke probation, the trial court must balance the interests of society in preventing future criminal conduct by the defendant against the possibility of rehabilitating the defendant outside of prison. In order to uphold a revocation of probation, the Commonwealth must show by a preponderance of the evidence that a defendant violated his probation.

Commonwealth v. Simmons, 56 A.3d 1280, 1283-84 (Pa. Super. 2012), appeal granted on other grounds, 75 A.3d 484 (Pa. 2013) (citation omitted).

In his first issue, Appellant argues that "[t]he [c]ourt erred and violated [Appellant's] rights when it failed to place adequate and proper reasons for the sentence on the record at the time of sentencing as required." (Appellant's Brief, at 14). We disagree.

[I]n all cases where the court resentences an offender following revocation of probation, county intermediate punishment or State intermediate punishment or resentences following remand, the court shall make as a part of the record, and disclose in open court at the time of sentencing, a statement of the reason or reasons for the sentence imposed. Failure to comply with these provisions shall be grounds for vacating the sentence or resentence and resentencing the defendant.

Commonwealth v. Cartrette, 2013 Pa. Super. Lexis 4573, 30-31 (Pa. Super. filed Dec. 24, 2013) (en banc) (citations and quotation marks omitted); see also 42 Pa.C.S.A. § 9721(b).

Rule [of Criminal Procedure] 708([D])(2), which states that the VOP sentencing judge shall state on the record the reasons for the sentence imposed . . . is not an end in itself[.] Requiring the VOP sentencing court to state the reasons for its sentence provides a procedural mechanism for the aggrieved party both to attempt to rebut the court's explanation and inclination before the sentencing proceeding ends, and to identify and frame substantive claims for post-sentence motions or appeal. The Rule creates a procedural right of immediate, contemporaneous complaint if no judicial explanation was forthcoming.

Commonwealth v. Schutzues, 54 A.3d 86, 97 (Pa. Super. 2012), appeal denied, 67 A.3d 796 (Pa. 2013) (quotation marks omitted).

"A sentencing court need not undertake a lengthy discourse for its reasons for imposing a sentence or specifically reference the statute in question, but the record as a whole must reflect the sentencing court's consideration of the facts of the crime and character of the offender." Commonwealth v. Crump, 995 A.2d 1280, 1283 (Pa. Super. 2010), appeal denied, 13 A.3d 475 (Pa. 2010) (citation omitted).

Here, a review of the Gagnon II hearing and sentencing transcript reflects that the court engaged in a detailed discussion of the facts and history of Appellant's case with the Commonwealth and Appellant's counsel. The Commonwealth established that Appellant's original conviction arose from the straw purchase of a firearm for a convicted felon, and that he violated his probation by participating in drug sales at his place of employment. (See N.T. Hearing, 6/12/13, at 3-4, 5-6). The court questioned the Commonwealth at length regarding its recommendation that Appellant be given another term of probation for the violation, and the Commonwealth reported that, other than the federal conviction, he had complied with his probation and completed drug rehab and community service. (Id. at 6-7, 8-9). The trial court stated, however, that it disagreed with the recommendation, at which point Appellant's counsel was permitted to speak on his behalf. (Id. at 11-12, 14-16). After Appellant's counsel presented information that Appellant had lost his job, but was "taking all the right steps in the right direction, " (id. at 15), the court observed that Appellant "caught a . . . break and then he got in trouble again. He violated his probation, which indicated that it shouldn't have been probation to begin with." (Id. at 15-16).

Thus, we conclude that the record reflects the court's reasons for Appellant's sentence and its consideration of the circumstances of the offense, Appellant's background, and Appellant's character. See Crump, supra at 1283. Appellant, through counsel, was given the opportunity "to rebut the court's explanation and inclination before the sentencing proceeding end[ed], and to identify and frame substantive claims for post-sentence motions or appeal." Schutzues, supra at 97. Accordingly, the court did not err or abuse its discretion in this regard. See Cartrette, supra at *30-31; Walls, supra at 961. Appellant's first issue lacks merit.

Second, Appellant asserts that "[t]he judgment of sentence imposed herein should be vacated since it was unduly harsh and excessive under the circumstances of this case." (Appellant's Brief, at 19). Specifically, Appellant argues that his sentence is "double the aggravated range, and in any event, disproportionate to the violation." (Id. at 21). We disagree.

"[I]t is within our scope of review to consider challenges to the discretionary aspects of an appellant's sentence in an appeal following a revocation of probation." Commonwealth v. Ferguson, 893 A.2d 735, 737 (Pa. Super. 2006), appeal denied, 906 A.2d 1196 (Pa. 2006).

Before we reach the merits of [Appellant's issues], we must engage in a four part analysis to determine: (1) whether the appeal is timely; (2) whether Appellant preserved his issue; (3) whether Appellant's brief includes a concise statement of the reasons relied upon for allowance of appeal with respect to the discretionary aspects of sentence; and (4) whether the concise statement raises a substantial question that the sentence is appropriate under the sentencing code. The third and fourth of these requirements arise because Appellant's attack on his sentence is not an appeal as of right. Rather, he must petition this Court, in his concise statement of reasons, to grant consideration of his appeal on the grounds that there is a substantial question. Finally, if the appeal satisfies each of these four requirements, we will then proceed to decide the substantive merits of the case.

Commonwealth v. Carrillo-Diaz, 64 A.3d 722, 725 (Pa. Super. 2013) (citation and footnote omitted).

Here, Appellant preserved his sentencing claim in his motion to modify and reduce sentence. See id. In addition, Appellant has included in his brief a separate statement of reasons for allowance of appeal. See id.; (see also Appellant's Brief, at 11-13). Specifically, Appellant claims that "the sentencing judge did not place adequate or proper reasons for the sentence on the record at the time of sentencing [and] the sentence imposed was harsh and excessive under the circumstances of this case." (Appellant's Brief, at 11; see id. at 13 (alleging that the sentence was "double the aggravated range for the underlying offense")). We observe that "our sentencing guidelines are not required to be consulted" when sentencing upon revocation. Cartrette, supra at *30 (citing 204 Pa. Code. § 303.1(b)). However, "[t]his Court has held that claims that the sentencing court imposed a sentence outside the standard guidelines without stating adequate reasons on the record presents a substantial question." Commonwealth v. Antidormi, 2014 Pa. Super. Lexis 16 (Pa. Super. filed Jan. 23, 2014) (citation omitted). Furthermore, "[a] claim that a sentence is manifestly excessive such that it constitutes too severe a punishment raises a substantial question." Commonwealth v. Kelly, 33 A.3d 638, 640 (Pa. Super. 2011) (citation omitted). Thus, Appellant has presented substantial questions permitting our review, and we will proceed to the substantive merits of Appellant's claim. See Carrillo-Diaz, supra at 725.

Our standard of review is well-settled. The imposition of sentence is vested in the discretion of the trial court, and should not be disturbed on appeal for a mere error of judgment but only for an abuse of discretion and a showing that a sentence was manifestly unreasonable. See Commonwealth v. Walls, 926 A.2d 957, 961 (Pa. 2007).

The rationale behind such broad discretion and the concomitantly deferential standard of appellate review is that the sentencing court is in the best position to determine the proper penalty for a particular offense based upon an evaluation of the individual circumstances before it. Simply stated, the sentencing court sentences flesh-and-blood defendants and the nuances of sentencing decisions are difficult to gauge from the cold transcript used upon appellate review. Moreover, the sentencing court enjoys an institutional advantage to appellate review, bringing to its decisions an expertise, experience, and judgment that should not be lightly disturbed.

Id. (citations and quotation marks omitted).

The proper standard of review for an appellate court is to focus on the pertinent statutory provisions in the Sentencing Code, specifically 42 Pa.C.S. § 9781(c) and (d), and 42 Pa.C.S. § 9721(b). We also consider a sentence imposed following revocation of probation in light of the limitations set forth in 42 Pa.C.S. § 9771(c). Because subsections 9781(c) and (d) include a focus on sentencing guidelines, however, and because sentencing guidelines do not apply to sentences imposed following a revocation of probation, in this case we look solely to the provisions of 42 Pa.C.S. § 9721(b). Section 9721(b) provides in pertinent part as follows:
[T]he court shall follow the general principle that the sentence imposed should call for confinement that is consistent with the protection of the public, the gravity of the offense as it relates to the impact on the life of the victim and on the community, and the rehabilitative needs of the defendant.

42 Pa.C.S. § 9721(b). Commonwealth v. Williams, 69 A.3d 735, 740-41 (Pa. Super. 2013), appeal denied, 2014 Pa. Lexis 157 (Pa. filed Jan. 16, 2014) (footnote and case citations omitted).

It is well-settled that "upon sentencing following a revocation of probation, the trial court is limited only by the maximum sentence that it could have imposed originally at the time of the probationary sentence." Commonwealth v. MacGregor, 912 A.2d 315, 317 (Pa. Super. 2006) (citations omitted).

Section 9771 further provides:
§ 9771. Modification or revocation of order of probation.
(a) General rule.-The court may at any time terminate continued supervision or lessen or increase the conditions upon which an order of probation has been imposed.
(b) Revocation.-The court may revoke an order of probation upon proof of the violation of specified conditions of the probation. Upon revocation the sentencing alternatives available to the court shall be the same as were available at the time of initial sentencing, due consideration being given to the time spent serving the order of probation.
(c) Limitation on sentence of total confinement.-The court shall not impose a sentence of total confinement upon revocation unless it finds that:
(1)the defendant has been convicted of another crime; or
(2) the conduct of the defendant indicates that it is likely that he will commit another crime if he is not imprisoned; or
(3) such a sentence is essential to vindicate the authority of the court. 42 Pa.C.S.A. § 9771(a)-(c).

Here, a review of the guideline sentence form from Appellant's initial negotiated guilty plea for selling a firearm to an ineligible transferee indicates that the maximum sentence available at the time of initial sentencing was eighty-four months' incarceration. (See Guideline Sentence Form, 9/02/10, at 1). Therefore, the sentence of not less than twenty-four nor more than forty-eight months' incarceration imposed upon revocation is well within the maximum sentence that could have been imposed at the time he received a probationary sentence. See 42 Pa.C.S.A. § 9771(b); MacGregor, supra at 317. Moreover, the court was not required to consult the sentencing guidelines upon revocation. See Cartrette, supra at *30. Furthermore, Appellant stipulated to the federal conviction underlying the revocation of his probation. (See N.T. Hearing, 6/12/13, at 3). Thus, the court was entitled to impose a sentence of potential total confinement upon revocation. See 42 Pa.C.S.A. § 9771(c)(1). The court did not err or abuse its discretion, and Appellant's challenge lacks merit. Williams, supra at 740-41; Walls, supra at 961.

Judgment of sentence affirmed.

Judgment Entered.

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